Kenton Leather Products, Inc.

Text (OCR of the scan at left; may contain errors)

In THE Marrer oF KENTON LEATHER PRODUCTS, INC., ET AL.

ORDER, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 7812. Complaint, Mar. 10, 1960*—Decision, Nov. 18, 1962 Order dismissing without prejudice, for failure of proof, complaint charging New York City manufacturers with attaching to their leather wallets and billfolds, tickets upon which a certain amount was printed along with the words “Comparable Billfolds”, when in fact respondents’ wallets or billfolds were inferior in grade and quality to products selling for the amount so printed. *As amended October 26, 1960.

KENTON LEATHER PRODUCTS, INC., ET AL. 1151 1150:. . Complaint ied sles Complaint Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said Act, the Federal. Trade Commission, having reason to believe that the Kenton Leather’ Products, Inc., a corporation, and Murray Smallman and Michael Kaye, individually and as officers of said corporation, hereinafter referred to as respondents, have violated the provisions of the said Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: Paracrapu 1. Respondent Kenton Leather Products, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of New York with its principal office and place of business at 101 West 31st Street, New York City, N.Y. Individual respondents Murray Smallman and Michael Kaye are officers of the corporate body. They formulate, direct and control the acts and practices of the corporate respondent, including the acts and practices hereinafter set forth. Their address is the same as that of the corporate respondent.

Par. 2. Respondents are now, and for some time last past have been, engaged in the manufacture, offering for sale, sale and distribution of leather wallets and billfolds to retailers for resale to the public. Par. 8. In the course and conduct of their business, respondents now cause, and for some time last past have caused, their said product, when sold, to be shipped from their place of business in the State of New York to purchasers thereof located in various other States of the United States and in the District of Columbia, and maintain, and at all times mentioned herein have maintained, a substantial course of trade in said product in commerce, as “commerce” is defined in the Federal Trade Commission Act. Par. 4. Respondents, for the purpose of inducing the purchase of their product, have engaged in the practice, in connection therewith, of attaching or causing to be attached, tickets to their wallets or billfolds, upon which a certain amount is printed, accompanied by the legend “Comparable Billfolds”, thereby representing, directly or by implication, that their said wallets or billfolds were of like grade and quality in all material respects to other wallets or billfolds currently offered for sale and sold at this amount printed on the ticket. In truth and in fact, respondents’ said wallets or billfolds were inferior in grade and quality in material respects to other wallets and billfolds currently selling for the amount printed on said tickets. Initial Decision 61 F-T.C.

Par. 5. By the aforesaid practice, respondents place in the hands of retailers means and instrumentalities by and through which they may mislead the public into the belief that the grade and quality of respondents’ wallets or billfolds are comparable to the grade and quality of wallets or billfolds of competitors, selling or sold at the amounts printed on the aforesaid ticket.

Par. 6. In the course and conduct of their business, at all times mentioned herein, respondents have been in substantial competition, in commerce, with corporations, firms and individuals in the sale of wallets of the same genera] kind and nature as that sold by respondents. Par. 7. The use by respondents of the aforesaid false, misleading and deceptive statements, representations and practice has had, and now has, the capacity and tendency to mislead members of the purchasing public into the erroneous and mistaken belief that said statements and representations were and are true and into the purchase of substantial quantities of respondents’ product by reason of said erroneous and mistaken belief. As a consequence thereof, substantial trade in commerce has been, and is being, unfairly diverted to respondents from their competitors and substantial injury has thereby been, and is being, done to competition in commerce. Par. 8. The aforesaid acts and practices of respondents, as herein alleged, were and are all to the prejudice and injury of the public and of respondents’ competitors and constituted, and now constitute, unfair and deceptive acts and practices and unfair methods of competition, in commerce, within the intent and meaning of the Federal Trade Commission Act.

Mr. Anthony J. Kennedy, Jr., for the Commission. Howrey, Simon, Baker and Murchison, of Washington, D.C., for the respondents.

Inrriau Decision py Epcar A. Bourrie, Heartne Examiner Respondents are charged in the Commission’s complaint issued on March 10, 1960, with practises alleged to be misleading and deceptive in violation of the Federal Trade Commission Act. The crux of the charges are set forth in paragraphs 4 and 5 as follows: “Respondents, for the purpose of inducing the purchase of their ‘product, have engaged in the practice, in connection therewith, of attaching or causing to be attached, tickets to their wallets or billfolds, upon which a certain amount is printed, accompanied by the legend ‘Comparable Billfolds’, thereby representing, directly or by implication, that their said wallets or billfolds were of like grade and quality KENTON LEATHER PRODUCTS, INC., ET AL. (11538 1150 Initial Decision in all material respects to other wallets or billfolds currently offered for sale and sold at this amount printed on the ticket. In truth and in fact, respondents’ said wallets or billfolds were inferior in grade and quality in material respects to other wallets and billfolds. currently selling for the amount printed on said tickets.” “By the aforesaid practice, respondents place in the hands of retailers means and instrumentalities by and through which they may mislead the public into the belief that the grade and quality of respondents’ wallets or billfolds are comparable to the grade and quality of wallets or billfolds of competitors, selling or sold at the amounts printed on the aforesaid ticket.” (As amended October 26, 1960.) Proposed findings of fact and conclusions of law were filed by counsel for the parties on March 16, 1962. Oral argument was had thereon on March 20, 1962. The hearing examiner has carefully reviewed and considered same. Proposed findings and conclusions which are not herein adopted, either in the form proposed or in substance, are rejected as not supported by the record or as involving immaterial matters.

Upon the entire record in the case, the hearing examiner makes the following:

FINDINGS OF FACT 1. Respondent, Kenton Leather Products, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of New York with its principal office and place of business located at 101 West 31st Street, New York, New York. 2. Individual respondent Murray Smallman is an officer of the corporate respondent. Individual respondent Michael Kaye was an officer of the corporate respondent until the date of his death on February 11, 1960. Their address was the same as that of the corporate respondent.

3. Individual respondent Murray Smallman formulated, directed and controlled the acts and practices of the corporate respondent, including the acts and practices set forth in the complaint in this matter.

Individual respondent Murray Smallman is the president of the corporate respondent. and has been from the very incorporation of this business. This has been a corporation with the ownership equally divided between Murray Smallman and Michael Kave until there was a new division of stock in August 1959, at, which time certain stock was given to the children of Murray Smallman and Michael Kaye. However, at that time Murray Smallman and Michael Kaye reserved to themselves the majority shares of voting stock, i.e., Murray Small- 1154 ‘ FEDERAL’ ‘TRADE COMMISSION: DECISIONS Initial Decision 61 FTC, man 60 shares of Class‘A Stock and Michael Kaye 60 shares of Class B Stock.1. The Board of Directors of the corporate respondent consisted of Murray Smallman, Michael Kaye and their wives. After the death of Michael Kaye in February 1960, the Board consisted of Murray Smallman, Adele Smallman and Mrs. Michael Kaye. ‘There is no evidence of record to indicate that Mrs. Adele Smallman and Mrs. Michael Kaye ever took an active interest in the business of the corporate respondent. .

4, Respondents are now, and for some time last past have been, engaged in the manufacture, offering for sale, sale and distribution of leather wallets and billfolds to retailers for resale to the public. 5. In the course and conduct of their business, respondents now cause, and for some time last past have caused, their said products, when sold, to be shipped from their place of business in the State of New York to purchasers thereof located in various other States of the United States and in the District of Columbia and maintain, and at all times mentioned herein have maintained a substantial course of trade in said products in commerce, as “commerce” is defined in the Federal Trade Commission Act.

6. Respondents, for the purpose of inducing the purchase of their product, have engaged in the practice, in connection therewith, of attaching or causing to be attached, tickets to their wallets and billfolds, upon which a certain amount is printed, accompanied by the legend “Comparable Billfolds”, thereby representing directly or by implication that their said wallets or billfolds were of like grade and quality in all material respects to other wallets and billfolds currently offered for sale and sold at this amount printed on the ticket. In truth and in fact respondents’ said wallets and billfolds were inferior in grade and quality in material respects to other wallets and billfolds currently selling for the amount printed on said tickets. 7. By the aforesaid practice, respondents place in the hands of retailers means and instrumentalities by and through which they may mislead the public into the belief that the grade and quality of respondents’ wallets or billfolds are comparable to the grade and quality of wallets or billfolds of competitors, selling or sold at the amounts printed on the aforesaid ticket.

8. In the course and conduct of their business, at all times mentioned herein, respondents have been in substantial competition, in commerce, with corporations, firms and individuals in the sale of wallets of the same general kind and nature as that sold by respondents. i There. is a total of 100 issuable shares of Class A Stock; also, the same number of issuable shares of Class B Stock. :

KENTON LEATHER PRODUCTS, INC.,,ET AL. 1155 1150 Initial. Decision CONCLUSIONS It must be concluded from the evidence that during the period contemplated by the complaint respondents engaged in the deceptive practice of selling billfolds and wallets ticketed as being “Comparable Billfolds” to those of competitors, when in fact they were inferior. There can be no doubt that a reasonable inference can be drawn from the semantics used by respondents that the legend “Comparable Billfolds” means comparability in grade, quality and value to competitors’ billfolds retailed at the same or higher price. In fact, the theory of respondents’ defense does not contest this. The Commission’s first witness, Virgil E. Hickman, an attorneyexaminer for the Commission described the manner in which he obtained the wallets and billfolds that became Commission Exhibits 8A, 44, 8D and 9C. Commission Exhibit 34 was purchased by him on October 27, 1959, at Gilchrist’s in Boston? at a price of $2.99. Commission Exhibit 4A was purchased at Snellenberg’s in Philadelphia at a price of $2.99 on October 19, 1959.4 Commission Exhibit 8D was.obtained from the sales office of Prince Gardner in New York in November 1959. Mr. Hickman testified that he asked for a wallet that retailed at $7.50.4 He also stated that he had seen the identical wallet in many stores.® Commission Exhibit 9C was obtained from the sales office of Buxton in New York on November 23, 1959. His testimony further indicates it was substantially identical to those he had seen in the stores that retail at $7.50.° Since these last two wallets were not purchased in retail stores, the hearing examiner was reluctant to consider this latter evidence of much probative weight.7. Accordingly, counsel supporting the complaint introduced evidence by stipulation and exhibits to establish that these identical models were actually retailed at the list price of $7.50.° From the foregoing, therefore, it is evident that the Princess Gardner wallet, Commission Exhibit 8D, and the Buxton wallet, Commis- 2See Commission Exhibit 3H.

3 See Commission, Exhibit 4F.

4See Tr. p. 116.

5 See Tr. p. 125.

6 See Tr. p. 129.

7See Tr. pp. 127, 133.

8 With respect to the Princess Gardner wallet see the stipulation at Tr. p. 256 and Commission Exhibits 14, 15, 16 and 17 which reflect that model 19R55T was received by Martin’s Department Store, Brooklyn, New York, and placed on sale during the month of August 1959. This is the same model as Commission Exhibit 8D. With respect to the’ Buxton wallet, a stipulation was entered in the record at Tr. p. 301 to the effect that on August 28, 1959, the Buxton Corporation shipped to Becker’s Leather Goods in Washington, D.C., six wallets, Model 20BSD. These wallets were received on September 8, 1959, and shortly, thereafter were put on sale at the price of $7.50. This model is the same model as Commission Exhibit 9C. 1156 ..FEDERAL TRADE COMMISSION DECISIONS Initial Decision 61 FTC.

sion Exhibit 9C, were on sale in the retail stores, prior to the purchase of the Kenton wallets, Commission Exhibits 3A and 4A in October 1959.

_ An expert, Paul Sterne, made a comparison of the aforesaid wallets. He was eminently qualified to do so. He had been in the leather business for over thirty years. He first learned the leather business in a tannery. in Offenbach, Germany, from 1926 to 1936. From 1941 to 1954 he was with Centra Leather Goods, a wallet manufacturer, and from 1954 to 1960 with two leather importers.° He compared the Kenton wallet, Commission Exhibit 4A, with the Buxton wallet, Commission Exhibit 9C. It was his opinion, based chiefly on the leather quality and the quality of workmanship that the Buxton wallet, Commission Exhibit 9C was superior.? He then compared the Kenton wallet, Commission Exhibit 3A to the Princess Gardner wallet, Commission Exhibit 8D. Again it was his opinion that the Princess Gardner wallet was superior to the Kenton wallet, principally with respect to the leather quality and the workmanship quality.™ Respondents’ defense is essentially three-fold: ~ 1. Commission Exhibits 8 and 4 (Kenton wallets) should not be compared with Commission Exhibits 8 and 9 (Prince Gardner and Buxton wallets) since the latter wallets were not purchased until one month after the Kenton wallets and were not on the retail market at the same time as Commission Exhibits 3 and 4. 2. The Kenton wallets (Commission Exhibits 8 and 4) were shopworn and therefore not representative of like models then on the market which were comparable to competitors’ wallets and billfolds at the same or higher retail price.

3. Commission Exhibits 3 and 4 were not otherwise typical or representative of respondents’ wallets which were ticketed “Comparable Billfolds”. Furthermore, respondents’ wallets typically were comparable to the wallets of competitors sold at the same or higher price. As regards respondents’ point that Commission Exhibits 3 and 4 (Kenton wallets) should not be compared with Commission Exhibits 8 and 9 (Prince Gardner and Buxton wallets) since the latter wallets _ were not purchased until one month after the Kenton wallets and, ° therefore, were not on the retail market at the same time, there seems to be little merit. Assuming this contention is correct, it must reasonably be presumed, in. the absence of evidence to the contrary, that wallets purchased one month after the Kenton wallets were purchased, © See Tr. pp. 176-177.

10 See Tr. p. 184.

See Tr. p. 187.

KENTON LEATHER PRODUCTS, INC., ET AL. 1157 1150 Initial Decision were on the market at the same time as these Kenton wallets, and that, therefore, Commission Exhibits 8 and 9 were in competition with Comtission. Exhibits 38 and 4. Such an assumption need not be-relied upon in this case, however, since the evidence offered by the Commission establishes that Commission Exhibits 3 and 4 and Commission Exhibits 8 and 9 were on the retail market at the same time. Respondents’ second point is equally without. merit. Although Commission Exhibits 3 and 4 did have the appearance of being handled extensively, this was not a factor that was considered by the Commission’s expert in determining comparability of those wallets with Commission Exhibits 8 and 9. In this connection, it might be added that respondents made no effort to introduce in evidence models which they did not consider shopworn, identical to Commission Exhibits 3 and 4, The principal witness for the respondents was Stanley Phillips, plant manager, who testified that all of the respondents’ wallets were comparable in grade and quality to competitors’ wallets which sold at the same or higher retail price. The hearing examiner was inypressed with the fact that Mr. Phillips was an expert for the purpose of making such comparisons both from the viewpoint of background and experience. Nevertheless, his testimony must be viewed as essentially self-serving ?* and, therefore, of minimal probative weight unless corroborated. Such corroboration, however, is notable by its absence in the respondents’ case. Aside from the comparability of the wallets themselves, Mr. Phillips’ testimony with regard to the efficient procedures of the respondent corporation in the manufacture of wallets, although impressive in some respects, is also self-serving and uncorroborated. Other respondents’ witnesses who testified on the issue of comparability such as James Herrmann and Alex Roberts indicated they were not experts on leather. This is an essential element of proof in determining the quality of a leather wallet or billfold. Also lacking as a part of respondents’ case was any specific evidence having probative weight which would establish with unequivlocal clarity the procedures adopted or criteria applied in deciding that respondents’ wallets were comparable in like grade and quality to the wallets of their competitors retailed at the same or higher price during the period both were competing on the market. Respondents’ third point recited herein to the effect that Commis- As5 1 4 1 1 2 625 2580 188 26 96.442657 distinguished5 1 4 1 1 3 828 2583 66 20 96.289909 from5 1 4 1 1 4 912 2583 162 26 96.040749 self-servings 1 4 1 1 5 1090 2584 177 26 96.223633 declarations,5 1 4 1 1 6 1287 2591 41 17 96.837517 sees 1 4 1 1 7 1343 2586 151 25 95.946815 Ballentine,5 1 4 1 1 8 1513 2587 61 21 96.826729 Laws 1 4 1 1 9 1589 2583 158 34 96.359200 Dictionary,5 1 4 1 1 10 1765 2593 63 27 95.863167 page4 1 4 1 2 0 514 2612 1313 34 -1 5 1 4 1 2 1 514 2612 70 26 96.890244 1182,5 1 4 1 2 2 604 2614 26 21 96.643852 to5 1 4 1 2 3 647 2614 44 21 96.904686 thes 1 4 1 2 4 706 2615 74 21 96.889381 effects 1 4 1 2 5 796 2617 59 20 96.650261 that5 1 4 1 2 6 871 2617 160 26 96.344490 self-servings 1 4 1 2 7 1046 2618 117 22 96.546066 evidences 1 4 1 2 8 1180 2619 23 21 96.897087 is5 1 4 1 2 9 1218 2620 194 26 91.179451 self-regarding5 1 4 1 2 10 1428 2620 118 21 96.328979 evidences 1 4 1 2 11 1561 2620 81 22 95.646355 which5 1 4 1 2 12 1658 2621 24 21 95.646355 is5 1 4 1 2 13 1696 2622 131 21 96.230331 favorable4 1 4 1 3 0 513 2647 1313 30 -1 5 1 4 1 3 1 513 2647 26 19 96.129280 to5 1 4 1 3 2 558 2647 44 21 96.129280 thes 1 4 1 3 3 620 2650 76 24 96.301239 party5 1 4 1 3 4 715 2649 55 21 96.335480 who5 1 4 1 3 5 791 2650 76 21 96.809372 offers5 1 4 1 3 6 886 2650 28 21 91.352165 it.5 1 4 1 3 7 952 2650 199 27 91.352165 Self-regarding5 1 4 1 3 8 1168 2653 119 21 96.748886 evidences 1 4 1 3 9 1305 2653 23 22 96.748886 is5 1 4 1 3 10 1346 2654 119 22 96.122421 evidences 1 4 1 3 11 1483 2654 84 22 96.122421 which5 1 4 1 3 12 1585 2656 94 21 96.783722 results5 1 4 1 3 13 1698 2655 66 22 95.710930 from5 1 4 1 3 14 1783 2656 43 20 96.555611 thea 1 4 1 4 0 514 2680 1311 40 -1 5 1 4 1 4 1 514 2680 109 22 96.167526 conducts 1 4 1 4 2 636 2687 27 16 96.167526 or5 1 4 1 4 3 678 2683 124 25 96.512657 languages 1 4 1 4 4 818 2684 27 20 96.826500 of5 1 4 1 4 5 858 2683 44 22 96.394920 thes 1 4 1 4 6 916 2686 75 24 96.394920 party5 1 4 1 4 7 1006 2686 55 21 96.639854 who5 1 4 1 4 8 1078 2685 75 22 96.306534 offers5 1 4 1 4 9 1166 2686 22 23 96.930283 it5 1 4 1 4 10 1201 2692 28 16 95.890869 or5 1 4 1 4 11 1243 2687 67 22 96.896591 from5 1 4 1 4 12 1324 2687 44 22 96.570625 thes 1 4 1 4 13 1382 2688 108 21 68.372818 conducts 1 4 1 4 14 1504 2694 29 15 96.943253 or5 1 4 1 4 15 1547 2689 42 21 96.721985 thes 1 4 1 4 16 1604 2689 125 31 96.639664 languages 1 4 1 4 17 1744 2689 26 22 96.211388 of5 1 4 1 4 18 1785 2689 40 21 96.621521 his4 1 4 1 5 0 511 2715 1213 22 -1 5 1 4 1 5 1 511 2719 55 15 96.605850 owns 1 4 1 5 2 581 2715 111 22 96.516449 witness.2 1 5 0 0 0 613 2773 281 25 -1 3 1 5 1 0 0 613 2773 281 25 -1 4 1 5 1 1 0 613 2773 281 25 -1 5 1 5 1 1 1 613 2773 281 25 0.000000 728-122-6574 1158 FEDERAL TRADE COMMISSION DECISIONS | Initial Decision 61 F.T-C.

sion Exhibits 8 and 4 were not otherwise typical or representative of respondents’ wallets which were ticketed as being of comparable value and that respondents’ wallets typically were comparable to wallets of competitors sold at the same or higher price is similarly without merit since the self-serving evidence adduced, although substantial in volume, was uncorroborated. The respondents offered an array of numerous wallets which Mr. Phillips testified were typical of the wallets that respondents had on the market at the same time that Commission Exhibits 8 and 4 (Kenton wallets) were on the retail market. Some of these wallets (i.e., competitors’ wallets) were purchased by respondents’ investigator subsequent to the filing of the complaint. Others were Kenton wallets held in stock at the plant of the respondent corporation. These latter wallets, when compared, appeared to the examiner to be of about the same quality as the wallets sold by competitors at the same or higher retail price. However, such visual observation by one not an expert is not persuasive. The expert testimony as to leather comparability was essentially that of Mr. Phillips, general manager of the respondent corporation and uncorroborated.

In presenting the foregoing evidence, respondents relied upon the testimony of Mr. Phillips, that this array of typical Kenton wallets, some of which were manufactured by Kenton and some by its competitors, were on the retail market at the same time contemplated by the complaint. However, there is no corroborative proof in the nature of Kenton invoices or retailers’ invoices that would establish such wallets were on the market at the time contemplated by the complaint and if so, when. Respondents’ evidence is clearly defective in this respect.

Commission’s counsel during the course of the proceedings requested invoices reflective of when the foregoing wallets were on the market for the purpose of cross-examining Mr. Phillips. Respondents indicated that they would make such invoices available and allegedly did so. However, counsel for the Commission did not use them for purposes of cross-examination. Respondents thereafter failed to offer these invoices in evidence, although the hearing examiner suggested they might be an element of proof in establishing that typical or representative wallets of the respondent corporation were in every way comparable in grade and quality to the wallets of its competitors retailed at the same or higher price during the period contemplated by the complaint. Failure to adduce available corroborative evidence alleged by respondents to be available without doubt has the effect 18 See Tr. 1788-1789.

KENTON “LEATHER | PRODUCTS;. INC., ET AL, 1159 1150.0: Initial Decision of: making self-serving evidence rather unpersuasive. ‘It is also diffi: cult to understand why respondents did not offer adequate expert testimony other than self-serving evidence on the comparability of the leather used in the wallets which j is an essential element in proving comparable quality .** There is a recognized legal presumption that a party will produce evidence which is favorable to him if such evidence exists and is available.* And the mere withholding or failing to produce material evidence which is available and would, in the circumstances of the case, be expected to be produced, gives rise to a natural inference— less forceful than that arising froni the destruction, fabrication or suppression of evidence in which other parties have a legal interest but constantly acted upon by the courts—that such evidence is held back | because it would be unfavorable or adverse to the party withholding it. 16 Lord Mansfield observed: “It is certainly 2 maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.” It is pertinent to note that the inference in question has persuasive rather than probative value, and, as pointed out by many authorities that it is not ordinarily to be accorded weight as substantive proof.”

The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse. 14 Respondents’ Exhibit 86, a report on leather tests made by Foster D. Snell, Inc., was received in evidence purportedly to. establish the comparable quality insofar as wearability and durability of 32 wallets are concerned. They are meaningless in the absence of explanatory testimony of an expert. Respondents’ witness, Rocco P. Scalici, an employee of Foster D. Snell, Inc., supervised and conducted the leather tests and attempted to explain them, although he is not a leather expert, which he concedes (Tr. 1228). In fact, respondents’ counsel appears to rely on the uncorroborated self-serving testimony of Mr. Phillips, general manager of respondent corporation, in order to identify the leather tested as the same leather that the wallets received in evidence are made of (Tr, 1229). Under the circumstances, such self-serving testimony is unpersuasive, 1% See also Lewis-Simas-Joneg Co. v, Southern P. Co., 283 U.S, 654, 51 Sup. Ct. 592, 75 L.Ed. 1333; Stocker v. Boston & M. R. Co., 84 N.H. 877, 151 Atl. 457, 70 A.L.R. 1320. See Mammoth Oil Co. v. United: States, 275 U.S. 18, 48 Sup. Ct. 1, 72 L.Ed. 137; Kirby v. Tallmadge, 160 U.S. 379, 16° Sup. Ct. 349, 40 L.Ed. 463; Wood v. Holley Mfg. Co., 100 Ala. 326, 13 So. 948, 46 Am. St. Rep. 56; Stedman v. Stedman, 179 Cal. 288,176 Pac. 437; Louisville ete. R. Co. v. Thompson, 107 Ind. 442, 8 N.E. 18, 9 N.E, 3857, 57 Am. Rep. 120; Crescent, City Ice Co. v. Erman, 86 La, Ann. 841; Hersey v. Hersey, 271 Mass. 545, 171 N.B. 815, 70 A.L.R. 518; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157; Dencer v. Jory, 131 Or. 653, 284 Pac. 163, 70 A.L.R. 855; Williams v. Commercial Nat, Bank, 49 Or. 492, 90 Pac. 1012,, 91 Pac. 448, 11 L.R.A. (N.S.) §57; Hall v. Vanderpool, 156 Pa. St. 152, 26 Atl, 1069; Ex parte Hernlen, 156 S.C. 181, 153 S.E. 138, 69 A.L.R. 443; Missourt etc. R. Co. v. Day, 140 Tex. 237, 186 S.W. 485, 34 L.R.A. (N.S.) 111; Miller v. Miller, 111 W. Va. 338, 161 S.E. 566, reviewed 18 Virginia L.R, 554; Studebaker Corp. v. Hanson, 24 Wyo, 222, 157 Pac, 582, 160 Pac. 336, Ann. Cas. 1917E, 557; Jones v. Wettlin, 89 Wyo. 381, 271 Pac. 217, 69 A.L.R. 840. 17 See Jones on Evidence, Sec. 19 at pp..-49 and 50. Initial Decision 61 F.T.C.

Clifton v. United States, 4 How. 242, 247. Silence then becomes evidence of the most convincing character. Runkle v. Burnham, 153- US. 216, 225: Kirby v. Tallmadge, 160 U.S. 379, 383; Bilokumsky v. Tod, 263 U.S. 149, 158, 154; Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 111, 112; Mammoth Oil Co. v. United States, 275 US. 18, 52; Local 167 v. United States, 291 U.S. 298, 298.18 The use by the respondents of the aforesaid false, misleading and. deceptive statements and representations has had, and now has, thecapacity and tendency to mislead and deceive members of the purchasing public into the erroneous and mistaken belief that such statements. and representations were, and are, true and into the purchase of substantial quantities of respondents’ products because of such erroneous. and mistaken belief. As a result thereof, substantial trade in commerce has been, and is being, unfairly diverted to respondents from their competitors and substantial injury has been done to competition in commerce.

The aforesaid acts and practices of respondents, as hereinabove found, are all to the prejudice and injury of the public and of respondents’ competitors and constitute unfair and deceptive acts and practices and unfair methods of competition, in commerce, within the intent and meaning of the Federal Trade Commission Act. Accordingly, since the Federal Trade Commission has jurisdiction and this proceeding is in the public interest, the following order shall issue: ORDER It is ordered, That respondents, Kenton Leather Products, Inc., a corporation, its officers, and Murray Smallman, individually and as an officer of the said corporate respondent, and respondents’ agents, representatives and employees, directly or through any corporate or other device, in connection with the manufacture, offering for sale, sale and distribution of wallets or billfolds or any other similar product in commerce as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Using on tickets or in any other manner the words “Comparable Billfolds” or any words of similar import, in connection with any price, as descriptive of respondents’ said products, when such products are not of like grade and quality in all material respects as the merchandise to which compared and which said merchandise is usually and regularly sold at retail at the purported price.

18 See Interstate Circuit v. U.S., 806 U.S. 208, 226. SPENCER GIFTS, INC., ET AL. 1161 1150 Complaint 2. Furnishing any means or instrumentality to retailers or others whereby they may mislead the public as to the grade and quality of respondents’ said products, and it is Further ordered, That the complaint is dismissed as to Michael Kaye, individually and as an officer of the respondent corporation by reason of his demise.

Orpver Dismissing Complaint This matter having been heard by the Commission on respondent’s exceptions to the hearing examiner’s initial decision and on briefs and oral argument in support thereof and in opposition thereto; and The Commission having duly considered said exceptions and the record herein and having determined that the allegations of the complaint have not been sustained by the evidence and that the complaint should be dismissed, such disposition of the case rendering it unnecessary to rule specifically on each of the exceptions to the initial decision :

It is ordered, That the complaint in this proceeding be, and it hereby is, dismissed without prejudice, however, to the right of the Commission to issue a new complaint or to take such further or other action against the respondents at any time in the future as may be warranted by the then existing circumstances.